GHP Management Corporation et al v. City of Los Angeles

Filing 53

ORDER GRANTING MOTIONS TO DISMISS, 17 , 43 by Judge Dean D. Pregerson: The motions to dismiss are GRANTED. Plaintiffs Complaint is DISMISSED, with leave to amend. Any amended complaint shall be filed within twenty-one days of thedate of this Order. IT IS SO ORDERED. (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GHP MANAGEMENT CORPORATION,

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Plaintiff,

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v.
CITY OF LOS ANGELES,

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Defendant.

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Case No. CV 21-06311 DDP (JEMx)
ORDER GRANTING MOTIONS TO DISMISS
[Dkt 17, 43]

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Presently before the court are two Motions to Dismiss

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Plaintiffs’ Complaint, one filed by Defendant City of Los Angeles

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(“the City”) and the other filed by Intervenors Alliance for

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Community Empowerment (“ACCE”); Strategic Actions for a Just

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Economy (“SAJE”); and Coalition for Economic Survival (“CES”)

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(collectively, “Intervenors”).

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of the parties, the court grants the motions and adopts the

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following Order.

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I.

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Having considered the submissions

Background
At the outset of the COVID-19 pandemic, the City enacted

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Ordinance No. 186585, which was later updated by Ordinance No.

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186606 (collectively, the “Eviction Moratorium” or “Moratorium”).
Plaintiffs allege that the Eviction Moratorium “effectively

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precludes residential evictions.”

(Complaint ¶ 45.)

The

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Moratorium prohibits landlords from terminating tenancies due to

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COVID-related nonpayment of rent, any no-fault reason, certain

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lease violations related to additional occupants and pets, or

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removal of rental units from the rental market.

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LAMC § 49.99.2, 49.99.4.)1

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charging interest or late fees on COVID-related missed rent.

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§ 49.99.2(D).)

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missed rent payments a one-year period to pay delayed rent,

(Complaint ¶ 46;

Landlords are also prohibited from
(LAMC

The Moratorium further allows tenants who have

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starting from the end of the ongoing local emergency period.

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(Compl. ¶ 46; LAMC § 49.99.2)

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civil penalties for violations of the Moratorium.

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LAMC § 49.99.7.)

Tenants may sue landlords and seek
(Compl. ¶ 49;

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Plaintiffs, comprised of (1) thirteen limited liability

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corporations or limited partnerships that own apartment buildings

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and (2) the management company that manages the buildings, own or

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manage nearly five thousand apartment units in Los Angeles.

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Plaintiffs allege that the Moratorium constitutes an uncompensated

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taking of private property in violation of the Fifth Amendment’s

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Takings Clause, as well as the California Constitution’s Takings

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Clause.

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compensation,” costs, and attorney’s fees, but does not seek to

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invalidate or enjoin enforcement of the Moratorium.

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Plaintiffs’ Complaint seeks an award of “just

Intervenors and the City now move separately to dismiss
Plaintiffs’ Complaint.

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The City’s Request for Judicial Notice is granted.
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II.

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Legal Standard
A complaint will survive a motion to dismiss when it

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“contain[s] sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.”

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556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 570 (2007)).

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court must “accept as true all allegations of material fact and

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must construe those facts in the light most favorable to the

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plaintiff.”

Ashcroft v. Iqbal,

When considering a Rule 12(b)(6) motion, a

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

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Although a complaint need not include “detailed factual

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allegations,” it must offer “more than an unadorned,

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the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

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678.

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statement of a legal conclusion “are not entitled to the assumption

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of truth.” Id. at 679. In other words, a pleading that merely

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offers “labels and conclusions,” a “formulaic recitation of the

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elements,” or “naked assertions” will not be sufficient to state a

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claim upon which relief can be granted.

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internal quotation marks omitted).

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Conclusory allegations or allegations that are no more than a

Id. at 678 (citations and

“When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S.

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at 679.

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their claims rise “above the speculative level.” Twombly, 550 U.S.

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at 555-56.

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claim for relief” is “a context-specific task that requires the

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reviewing court to draw on its judicial experience and common

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sense.” Iqbal, 556 U.S. at 679.

Plaintiffs must allege “plausible grounds to infer” that

“Determining whether a complaint states a plausible

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III. Discussion

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A.

Per Se Taking

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Movants contend that the Moratorium is not a permanent

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physical invasion of Plaintiffs’ properties, and therefore does not

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constitute a per se taking.

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v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440 (1982)

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(“We affirm the traditional rule that a permanent physical

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occupation of property is a taking.”) In Loretto itself, the

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Supreme Court recognized “that States have broad power to regulate

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housing conditions in general and the landlord-tenant relationship

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in particular without paying compensation for all economic injuries

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that such regulation entails[,] . . . [s]o long as these

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regulations do not require the landlord to suffer the physical

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occupation of a portion of his building by a third party.”

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Later, in Yee v. City of Escondido, Cal., 503 U.S. 519 (1992), the

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Court held that a combination of rent control laws and eviction

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protections that limited property owners’ ability to evict tenants

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did not constitute governmental authorization of “a compelled

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physical invasion of property” that would constitute a per se

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taking.

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(E.g., City Mot. at 15.)

See Loretto

Id.

Yee, 503 U.S. at 527-28.

In Yee, a local rent control ordinance limited a mobile home

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park owners’ ability to raise rents, while a state law

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simultaneously protected mobile home owners’ ability to transfer

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mobile homes sited on rented mobile home park land.

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The park owners alleged that the rent control scheme, against the

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backdrop of the state law, constituted a physical taking of park

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land, insofar as it granted tenants and their successors “the right

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to physically permanently occupy and use the real property of
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Id. at 524-25.

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Plaintiff.”

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decides to rent his land to tenants, the government may place

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ceilings on the rents the landowner can charge, or require the

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landowner to accept tenants he does not like, without automatically

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having to pay compensation.”

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omitted).

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forced upon them by the government. . . .

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be presented were the statute, on its face or as applied, to compel

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a landowner over objection to rent his property or to refrain in

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Id. at 525.

The Court disagreed.

“When a landowner

Id. at 529 (internal citations

“Petitioners’ tenants were invited by petitioners, not

perpetuity from terminating a tenancy.”

A different case would

Id. at 528.

In response to Movants’ arguments that Yee controls here,

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Plaintiffs argue primarily that Yee is no longer good law because

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“six members of the Supreme Court obviously disagree” with its

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central premise: that once a landlord chooses to rent to tenants,

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the government may regulate the landlord-tenant relationship

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without automatically engaging in a per se taking.

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Mot. at 18:17.)

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the Supreme Court’s recent decisions in Alabama Ass’n

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of Realtors v. Department of Health & Human Services, 141 S. Ct.

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2485 (2021), and Pakdel v. City & Cty. of San Francisco, 141 S. Ct.

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2226 (2021).

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all, on the continued validity of Yee.

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Realtors, the Supreme Court granted an emergency application to

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vacate a stay of a judgment invalidating the Centers for Disease

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Control and Prevention (“CDC”)’s eviction moratorium.

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Ass’n of Realtors, 141 S.Ct. at 2486, 2490.

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address any takings issue anywhere in its opinion.

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Court did, citing Loretto, recognize that the right to exclude is

(Opp. to City

To support their assertion, Plaintiffs point to

These cases bear only tangentially however, if at

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In Alabama Association of

Alabama

The Court did not
Although the

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“one of the most fundamental elements of property ownership,” Yee

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acknowledged the very same principle.

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(“[T]he right to exclude is doubtless . . . one of the most

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essential sticks in the bundle of rights that are commonly

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characterized as property . . . .”) (internal quotation marks

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omitted).

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Id.; Yee, 503 U.S. at 528

Pakdel did involve a takings claim, albeit a regulatory

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takings claim rather than a per se claim.

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2228.

Pakdel, 141 S.Ct. at

The Court’s opinion, however, was limited to the question

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whether petitioners were required to exhaust local government

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administrative procedures before filing suit pursuant to 42 U.S.C.

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§ 1983, even after the local government had rendered a final

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regulatory decision.

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in the negative, the Court stated in a footnote that “[o]n remand,

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the Ninth Circuit may give further consideration to [merits] claims

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in light of our recent decision in Cedar Point Nursery v. Hassid.”2

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Id. at 2229 n.1 (citation omitted).

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concluded that a California law requiring farmers to grant union

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organizers access to private property for up to three hours per

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day, 120 days per year, constituted a per se physical taking.

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Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2069, 2080 (2021).

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Although the Court did cite Yee, it did so only once, and then only

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as an example of a decision that has “described use restrictions

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that go ‘too far’ as ‘regulatory takings.’” Id. at 2072.

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then observed that the “regulatory takings” label can be misleading

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where, as in Cedar Point, “a regulation results in a physical

Id.

In the course of answering that question

In Cedar Point, the Court

The Court

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The district court in Pakdel did not reach the merits of the
takings claims. Pakdel, 141 S.Ct. at 2228-29.
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appropriation of property.”

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of Yee, let alone the principle that a regulation governing an

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existing landlord-tenant relationship is distinguishable from a

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regulation compelling physical occupation in the first instance, or

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in perpetuity.

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Court’s footnote in Pakdel, indicating that the Ninth Circuit

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remains free to consider Cedar Point if and when the Ninth Circuit,

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on remand, reaches merits issues that were never reached by the

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district court, does little to vitiate Yee.3

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Id.

The Court made no further mention

Thus, contrary to Plaintiffs’ suggestion, the

This Court declines Plaintiffs’ invitation to read the tea

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leaves, such as they are, in Alabama Association of Realtors,

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Pakdel, and Cedar Point.

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abrogate Yee or its prescription that laws that “merely regulate

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[landlords’] use of their land by regulating the relationship

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between landlord and tenant” do not constitute per se takings.

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Yee, 503 U.S. at 528 (emphasis original).

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None of those cases can be read to

Plaintiffs also argue, briefly, that the Moratorium
constitutes a per se taking even under Yee because it “requires

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This Court acknowledges that in Heights Apartments, LLC v.
Walz, the Eighth Circuit found Yee distinguishable and applied
Cedar Point to sustain a per se takings challenge to an eviction
moratorium. Heights Apartments, 30 F.4th 720, 733 (8th Cir. 2022).
That has not, however, been the Ninth Circuit’s approach. In
Ballinger v. City of Oakland, for example, the Ninth Circuit
addressed a takings challenge to an ordinance requiring payments to
tenants prior to an eviction, even for good cause. Ballinger, 24
F.4th 1287, 1292 (9th Cir. 2022), cert. denied sub nom. Ballinger
v. City of Oakland, California, 142 S. Ct. 2777 (2022). Citing to
both Cedar Point and Yee, the court applied the latter, concluding
that even a regulation mandating payments from landlords to tenants
constituted a regulation of the use of property, and not a per se
taking, such as those described in Yee, compelling the creation of
a new landlord-tenant relationship or barring the termination of a
tenancy “in perpetuity.” Id. at 1293-94 (quoting Yee, 503 U.S. at
528).
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the landowner to submit to the physical occupation of his land.

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‘This element of required acquiescence is at the heart of the

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concept of occupation.’”

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Yee, 503 U.S. at 527 (quoting FCC v. Florida Power Corp., 480 U.S.

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245, 252 (1987) (emphasis original)).

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Moratorium does not swoop in out of the blue to force Plaintiffs to

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submit to a novel use of their property.

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present the type of different case, contemplated by Yee, where a

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regulation compels a landowner to “refrain in perpetuity from

(Opp. to Intervenors’ Mot. at 3:23-28.)

But, as in Yee, the

Nor does the Moratorium

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terminating a tenancy.”

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evictions for a limited, albeit indeterminate, time.

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(discussing Cal.Civ.Code § 798.56(g) requirement of up to 12 months

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notice prior to eviction).

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required any physical invasion of petitioners’ property. [The]

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tenants were invited by [the landlords], not forced upon them by

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the government.”

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F.4th at 1293 (No per se taking, even where regulation required

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payment by landlord to tenants prior to eviction for good cause,

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because landlord plaintiffs “voluntarily chose to lease their

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property . . . .”).

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relationship is not a per se taking.

Id. at 528.

The Moratorium only precludes
Compare id.

“Put bluntly, no government has

Yee, 503 U.S. at 528; see also Ballinger, 24

A regulation affecting that pre-existing

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B.

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“[W]hile property may be regulated to a certain extent, if

Regulatory taking

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regulation goes too far it will be recognized as a taking.”

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Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

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“[C]ompensation is required only if considerations such as the

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purpose of the regulation or the extent to which it deprives the

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owner of the economic use of the property suggest that the
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regulation has unfairly singled out the property owner to bear a

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burden that should be borne by the public as a whole.”

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U.S. at 522–23 (citing Penn Central Transportation Co. v. New York

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City, 438 U.S. 104, 123–125 (1978)).

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factors “include the regulation’s economic impact on the claimant,

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the extent to which the regulation interferes with distinct

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investment-backed expectations, and the character of the government

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action.”

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1118, 1127 (9th Cir. 2013).

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Yee, 503

The relevant Penn Central

MHC Fin. Ltd. P’ship v. City of San Rafael, 714 F.3d

1.

Economic Impact

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The Ninth Circuit discussed the Penn Central factors,

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including the economic impact factor, at length in Colony Cove

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Properties, LLC v. City of Carson, 888 F.3d 445 (9th Cir. 2018).

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As the court explained, “[n]ot every diminution in property value

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caused by a government regulation rises to the level of an

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unconstitutional taking.”

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Similarly, “the mere loss of some income because of regulation does

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not itself establish a taking.”

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whether a regulation is “functionally equivalent to the classic

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taking in which government directly appropriates private property

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or ousts the owner from his domain.”4

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Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005)).

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threshold is high.

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diminution in property value as high as 92.5% does not constitute a

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taking, and no court has found a taking where the diminution of

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value does not exceed 50%.

Colony Cove, 888 F.3d at 451.

Id.

Rather, courts look to

Id. (quoting Lingle v.
Accordingly, the

Indeed, the Ninth Circuit has observed that a

Id.

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This same fundamental inquiry underpins analyses of per se
takings. See Lingle, 544 U.S. 538-39.
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To determine a diminution in value for purpose of evaluating

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the economic impact on a plaintiff, courts “compare the value that

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has been taken from the property with the value that remains in the

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property.”

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Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)).

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Here, however, Plaintiffs’ Complaint does not allege any particular

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diminution in value, or specific pre- or post-Moratorium values

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from which a level of diminution could be calculated.

Colony Cove, 888 F.3d at 451 (quoting Keystone

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Plaintiffs assert that this pleading deficiency is not fatal,

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and that they need not allege any quantitative facts pertaining to

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valuation, because the Ninth Circuit’s Colony Cove opinion is

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wrong.

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contend that because the Penn Central factor analysis is

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“essentially ad hoc,” the allegation that Plaintiffs have lost

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rents as a result of the Moratorium is alone sufficient to satisfy

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the economic impact factor.

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(Opp. to Intervenors’ Mot. at 6:1-4, 7 n.4.)

Plaintiffs

See Penn Central, 438 U.S. at 124.

Even if this Court were to agree with the substance of

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Plaintiffs’ arguments, the court could not simply disregard Colony

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Cove and excuse Plaintiffs of their burden to allege and show the

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requisite adverse economic impact.

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circuit authority . . . has no choice but to follow it, even if

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convinced that such authority was wrongly decided.”

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Massanari, 266 F.3d 1155, 1175 (9th Cir. 2001).

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allegation that their tenants are $20 million in arrears is

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presented in a vacuum, and cannot alone demonstrate a significant

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economic impact, notwithstanding Plaintiffs’ vague and conclusory

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allegation that “the economic impact of the Eviction Moratorium is

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severe and ruinous.”

(Compl. ¶ 71.)

“A district court bound by

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Hart v.

Plaintiffs’

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2.

Interference with investment-backed expectations

The next Penn Central factor is “the extent to which the

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regulation has interfered with distinct investment-backed

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expectations.”

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mean to anticipate or look forward to, but it can also mean ‘to

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consider probable or certain,’ and ‘distinct’ means capable of

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being easily perceived, or characterized by individualizing

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qualities.”

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Cir. 2010) (en banc).

Penn Central, 438 U.S. at 124.

“To ‘expect’ can

Guggenheim v. City of Goleta, 638 F.3d 1111, 1120 (9th
“To form the basis for a taking claim, a

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purported distinct investment-backed expectation must be

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objectively reasonable.”

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Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 226 (1986).

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“[W]hat is relevant and important in judging reasonable

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expectations is the regulatory environment at the time of the

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acquisition of the property.”

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Comm’n, 950 F.3d 610, 634 (9th Cir. 2020) (internal quotation marks

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and citation omitted).

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field cannot object if the legislative scheme is buttressed by

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subsequent amendments to achieve the legislative end.”

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Concrete Pipe & Prod. of California, Inc. v. Constr. Laborers

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Pension Tr. for S. California, 508 U.S. 602, 645 (1993) (quoting

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FHA v. The Darlington, Inc., 358 U.S. 84, 91 (1958)) (internal

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alterations omitted).

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Colony Cove, 888 F.3d at 452; see also

Bridge Aina Le’a, LLC v. Land Use

“[T]hose who do business in [a] regulated

Movants argue that Plaintiffs knowingly chose to invest in the

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highly-regulated rental housing market, and that any subjective

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expectations Plaintiffs may have had that the regulatory

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environment would remain static were and are objectively

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unreasonable.

The City raised, and this Court rejected, a similar
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argument in the context of a Contracts Clause challenge to the same

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Moratorium at issue here.

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Cnty., Inc. v. City of Los Angeles, 500 F. Supp. 3d 1088, 1095

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(C.D. Cal. 2020), aff’d, 10 F.4th 905 (9th Cir. 2021), cert.

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denied, 212 L. Ed. 2d 595, 142 S. Ct. 1699 (2022).

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acquired their rental properties in the midst of the pandemic,

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Movants’ argument might be more compelling.

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environment existing prior to the pandemic, however, gave

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Plaintiffs little reason to expect that they might be barred from

See Apartment Ass’n of Los Angeles

Had Plaintiffs

The regulatory

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evicting tenants for nonpayment of rent.

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F.3d at 634.

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reasonable probability, like expecting rent to be paid, not starry

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eyed hope of winning the jackpot if the law changes.

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buys land burdened by lease-holds in order to acquire a stream of

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income from rents and the possibility of increased rents or resale

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value in the future.”

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added).

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COVID-19 pandemic, and of the public health measures necessary to

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combat it, have no precedent in the modern era, and [] no amount of

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prior regulation could have led landlords to expect anything like

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the blanket Moratorium.”

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F.Supp. 3d at 1096; see also Baptiste v. Kennealy, 490 F. Supp. 3d

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353, 390 (D. Mass. 2020).

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interferes with Plaintiffs’ reasonable expectations thus weighs in

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favor of a regulatory taking.

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Bridge Aina Le’a, 950

“‘Distinct investment-backed expectations’ implies

A landlord

Guggenheim, 638 F.3d at 1120 (emphases

As this Court has stated, “the scope and nature of the

3.

Apartment Ass’n of Los Angeles, 500

The extent to which the Moratorium

Character of the Moratorium

“A ‘taking’ may more readily be found when the interference
with property can be characterized as a physical invasion by
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government than when interference arises from some public program

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adjusting the benefits and burdens of economic life to promote the

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common good.”

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control ordinances intended to shield residents from “excessive

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rent increases,” have been found to constitute “precisely such a

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program.”

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doubt the Moratorium is geared toward promoting the common good.

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Indeed, the Moratorium is predicated on the City’s findings that

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“[t]he COVID-19 pandemic threatens to undermine housing security

Penn Central, 438 U.S. at 124.

Colony Cove, 888 F.3d at 454.

For example, rent

Here, there can be little

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and generate unnecessary displacement of City residents.”

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49.99.)

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protections, significant numbers of tenants with COVID-related loss

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of income would have been evicted, resulting not only in the harms

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typical of mass displacements, but exacerbating the spread of

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COVID-19 as well, to the detriment of all.

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addressing similar regulations, have reached the same conclusion.

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See, e.g., Baptiste, 490 F. Supp. At 390 (D. Mass. 2020); S.

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California Rental Hous. Ass’n v. Cty. of San Diego, No.

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3:21CV912-L-DEB, 2021 WL 3171919, at *9 (S.D. Cal. July 26, 2021).

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(LAMC §

There can be little dispute that, absent the Moratorium’s

Other courts,

With respect to the “character” factor, Plaintiffs largely

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reiterate their argument, rejected above, that the Moratorium is a

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per se taking.

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although rent control schemes may qualify as sufficiently public-

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oriented, the Moratorium “is far different and significantly more

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serious.”

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not, however, explain how a regulation intended to minimize the

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displacement of financially vulnerable tenants in the midst and as

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a result of a public health emergency unprecedented in modern

Beyond that, Plaintiffs contend in a footnote that,

(Opp. to Intervenors’ Mot. at 9 n.5.)

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Plaintiffs do

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history is less protective of the common good than are rent control

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ordinances.

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bearing the “seriousness” of the Moratorium has on the public

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nature of its purpose.

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emphasize the shifting of financial burdens from tenants to

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landlords, the Ninth Circuit has recognized that commonplace

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regulations, including rent control, zoning schemes, and other land

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use restrictions, “can also be said to transfer wealth from the one

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who is regulated to another.”

As to seriousness, it is not clear to the court what

To the extent Plaintiffs intend to

Yee, 503 U.S. at 529.

And, to the

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extent Plaintiffs use the word “serious” to refer to the degree of

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the Moratorium’s financial effects, they have failed, as discussed

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above, to plead any facts establishing a “serious” economic impact.

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4.

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Balance of Penn Central factors

Plaintiffs have adequately alleged that the Moratorium has

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interfered with the reasonable, investment-backed expectations

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Plaintiffs had when they acquired their rental properties.

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Complaint does not, however, allege any diminution in value, let

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alone a diminution high enough to function as the equivalent of a

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classic taking.

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the common good, the balance of the Penn Central factors weighs

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heavily against a determination that the Moratorium constitutes a

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regulatory taking.

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IV.

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The

Because the Moratorium also indisputably promotes

Conclusion
For the reasons stated above, the motions to dismiss are

GRANTED.5

Plaintiffs’ Complaint is DISMISSED, with leave to amend.

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Having determined that Plaintiffs’ Complaint fails to allege
either a per se or regulatory taking, the court does not reach the
City’s arguments that any takings claims are unripe, or that
(continued...)
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Any amended complaint shall be filed within twenty-one days of the

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date of this Order.

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IT IS SO ORDERED.

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Dated: November 17, 2022
DEAN D. PREGERSON
United States District Judge

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(...continued)
Plaintiffs lack standing to assert any such claims.
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